Tovia Lafaele v. Arnold Schwarzenegger

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The panel unanimously concludes this case is suitable for decision**
without oral argument. See Fed. R. App. P. 34(a)(2).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TOVIA LAFAELE,
Plaintiff - Appellant,
v.
ARNOLD SCHWARZENEGGER,
Defendant - Appellee.
No. 09-15338
D.C. No. 2:06-CV-01049-FCD-
DAD
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Frank C. Damrell, Jr., District Judge, Presiding
Submitted February 16, 2010**
Before: FERNANDEZ, GOULD, and M. SMITH, Circuit Judges.
Tovia LaFaele, a California state prisoner, appeals pro se from the district
court’s judgment dismissing his 42 U.S.C. § 1983 action challenging the ban on
the use of tobacco products by inmates in California state prisons. We have
FILED
MAR 08 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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jurisdiction under 28 U.S.C. § 1291. We review de novo, Resnick v. Hayes, 213
F.3d 443, 447 (9th Cir. 2000), and we affirm.
The district court properly dismissed the Eighth Amendment claim because
LaFaele did not allege facts indicating that defendant was deliberately indifferent
to a serious medical need. See Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir.
2004) (stating that a defendant acts with deliberate indifference only if he knows of
and disregards an excessive risk to inmate health and safety).
The district court properly dismissed the due process claim because LaFaele
did not allege facts showing that the ban on tobacco use imposed an “atypical and
significant hardship on [him] in relation to the ordinary incidents of prison life.”
Sandin v. Conner, 515 U.S. 472, 484 (1995).
The district court properly dismissed the equal protection claim because
LaFaele is not a member of a suspect class, LaFaele has not shown that tobacco use
is a fundamental right, and LaFaele’s complaint indicates that the ban on tobacco
use bears a rational relation to legitimate governmental objectives. See Webber v.
Crabtree, 158 F.3d 460, 461 (9th Cir. 1998) (per curiam).
AFFIRMED.

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